Published: Sunday, July 14, 2013 at 1:31 a.m.

Last Modified: Sunday, July 14, 2013 at 1:31 a.m.

Former New Hanover County Commissioner Brian Berger’s appeal hearing will be held Tuesday at N.C. Business Court in Greensboro, and the judge’s decision could become the new state precedent.

Berger’s removal from the board May 20 marked the first time an amotion has been successfully used to remove a North Carolina elected official in nearly a century. The commissioners voted 3-2 to oust him, with Berger and Commissioner Jonathan Barfield voting against the move.

The ousted commissioner filed a court appeal with the New Hanover County Superior Court in mid-June to be reinstated. His appeal will be held before Special Superior Court Judge James Gale.

Gale was given the case after Sarah Parker, the chief justice of the N.C. Supreme Court, ruled the case as “exceptional” and assigned Gale as the presiding judge.

If the chief justice rules a case as “exceptional,” it falls under a special statute, Rule 2.1 of the General Rules of Practice for the Superior and District Courts, that allows the court to assign one judge to manage the case from start to finish.

Gale has three major decisions to make during the hearing.

First, Gale must decide whether or not an amotion is a proper and viable way to remove an elected official.

If Gale rules that the amotion is not a valid way to remove an elected official then Berger will likely be immediately reinstated.

Berger and his lawyer, Christopher Anglin of Raleigh, argue that the county did not have the ability to use the amotion process because it is an outdated common law that deals with corporations.

In an opposition motion filed July 8, New Hanover County fought back against these accusations. The board, along with its Greenville-based lawyer, John Martin, use a similar amotion case from 1908 and state statutes to attempt to prove that the board can be recognized as a corporation and the common law applies.

The board also states in the document that though the amotion process might be antiquated, “the age of common law rights or case law does not affect their binding nature and precedential value.”

If he determines that the amotion was viable, Gale will have to decide if the rules for the original amotion hearing passed by the board of commissioners allowed Berger due process.

Berger and Anglin state in their appeal documents that the cards were stacked against them and that Berger did not have a chance at a fair hearing.

They also said the case against Berger should have only been heard in front of an impartial judge, not Berger’s fellow board members.

The county attempts to refute these claims by stating that the board’s approved rules made it fair to both parties.

Lastly, the judge will also have to determine whether the court has the jurisdiction and power to review an appeal.

This option will matter only if Gale rules that the amotion hearing was a valid way to remove Berger from office.

If he rules it is viable, Gale will be the final determination on whether Berger is fit to serve on the board.

Berger’s appeal hearing, which begins at 1 p.m., will be open to the public.

<p>History will be made this week.</p><p>Former New Hanover County Commissioner Brian Berger's appeal hearing will be held Tuesday at N.C. Business Court in Greensboro, and the judge's decision could become the new state precedent.</p><p>Berger's removal from the board May 20 marked the first time an amotion has been successfully used to remove a North Carolina elected official in nearly a century. The commissioners voted 3-2 to oust him, with Berger and Commissioner Jonathan Barfield voting against the move.</p><p>The ousted commissioner filed a court appeal with the New Hanover County Superior Court in mid-June to be reinstated. His appeal will be held before Special Superior Court Judge James Gale.</p><p>Gale was given the case after Sarah Parker, the chief justice of the N.C. Supreme Court, ruled the case as “exceptional” and assigned Gale as the presiding judge.</p><p>If the chief justice rules a case as “exceptional,” it falls under a special statute, Rule 2.1 of the General Rules of Practice for the Superior and District Courts, that allows the court to assign one judge to manage the case from start to finish. </p><p>Gale has three major decisions to make during the hearing.</p><p>First, Gale must decide whether or not an amotion is a proper and viable way to remove an elected official.</p><p>If Gale rules that the amotion is not a valid way to remove an elected official then Berger will likely be immediately reinstated.</p><p>Berger and his lawyer, Christopher Anglin of Raleigh, argue that the county did not have the ability to use the amotion process because it is an outdated common law that deals with corporations. </p><p>In an opposition motion filed July 8, New Hanover County fought back against these accusations. The board, along with its Greenville-based lawyer, John Martin, use a similar amotion case from 1908 and state statutes to attempt to prove that the board can be recognized as a corporation and the common law applies.</p><p>The board also states in the document that though the amotion process might be antiquated, “the age of common law rights or case law does not affect their binding nature and precedential value.”</p><p>If he determines that the amotion was viable, Gale will have to decide if the rules for the original amotion hearing passed by the board of commissioners allowed Berger due process.</p><p>Berger and Anglin state in their appeal documents that the cards were stacked against them and that Berger did not have a chance at a fair hearing. </p><p>They also said the case against Berger should have only been heard in front of an impartial judge, not Berger's fellow board members.</p><p>The county attempts to refute these claims by stating that the board's approved rules made it fair to both parties.</p><p>Lastly, the judge will also have to determine whether the court has the jurisdiction and power to review an appeal.</p><p>This option will matter only if Gale rules that the amotion hearing was a valid way to remove Berger from office. </p><p>If he rules it is viable, Gale will be the final determination on whether Berger is fit to serve on the board.</p><p>Berger's appeal hearing, which begins at 1 p.m., will be open to the public.</p><p><i></p><p>Ashley Withers: 343-2223</p><p>On <a href="http://www.starnewsonline.com/section/news41"><b>Twitter</b></a>: @AshleyWithers</i></p>